By Liz Goodwin -
Emboldened by the Obama administration's announcement they will no longer defend part of the Defense of Marriage Act in Court, an immigration rights group is trying to put together a case to sue the federal government for preventing married gay people from sponsoring their spouses for citizenship.
Heterosexual Americans can apply for their foreign-born spouses to become citizens, but gay Americans cannot, even in states where gay marriage is legal.
Erwin de Leon, a public policy PhD student originally from the Philippines, told The Lookout that even though he's married to his partner of 13 years, he faces the prospect of having to leave the United States when his student visa runs out. In a bizarre twist, de Leon's mother--who married a male U.S. citizen--is now trying to sponsor her son for a green card, since De Leon's own husband cannot.
"She met my step-dad, fell in love, got married and since he happens to be an American citizen, she got sponsored and in three months got a green card," de Leon said of his mother. "And now she's sponsoring me but it could take about 12 to 15 years for her petition to come through."
"If gay marriage were recognized federally, I'd be a citizen by now."
According to the UCLA's Williams Institute, there are 36,000 binational same-sex couples--where one person is a immigrant and the other a U.S. citizen--in the country.
The group Immigration Equality is now gathering plaintiffs such as de Leon to argue in federal court that the Defense of Marriage Act, which says the federal government only recognizes marriage between men and women, is discriminating against gay immigrants. Immigration Equality Executive Director Rachel Tiven said the plaintiffs will most likely file the case in the Second U.S. Circuit, which covers Vermont and Connecticut, where gay marriage is legal, and New York, where gay marriages performed in other states are recognized.
Tiven said the yet-to-be-chosen plaintiffs will most likely be binational couples who live in the United States, even though her organization also hears frequently from binational couples who are forced to live in other countries after their petitions for legal residency were denied.
In the meantime, the group is asking the Department of Homeland Security to stay deportations in cases where a person was denied residency because the federal government wouldn't recognize his or her same-sex marriage. Once a person is deported from the United States, he or she may not return for 10 years.
Such is the problem facing Edwin Echegoyen and Rodrigo Martinez, another D.C. couple who married last year when gay marriage became legal in the district. Martinez came to the United States from El Salvador on a visitor's visa eight years ago. He was issued an Order of Removal by Immigration and Customs Enforcement officers several years ago, but Echegoyen was not allowed to attempt to sponsor Martinez. Martinez turned himself into ICE agents today, and will most likely be held in a detention center and then deported. (Even for straight immigrants who marry U.S. citizens, it can be very difficult to get legal status if they overstayed a visa or are otherwise in the country illegally.)
Martinez's lawyer Lavi Soloway told the Lookout that because the Obama administration finds DOMA unconstitutional, federal officials should not use it as a reason to deport people. "Now all three branches of government are moving in a direction towards the elimination of this law, and it's the only thing that stands between Rodrigo and being able to stay with his husband," he said.
Challenges to DOMA are making their way through the federal court system and may soon be heard by the Supreme Court. Some Democratic politicians have endorsed ending DOMA, though it doesn't seem likely to happen soon. Obama said he thinks civil unions, not marriage, is a more appropriate union for gay couples, though he also said that position is "evolving."
Local news channel 9 News Now has a video report, below, on Echegoyen and Martinez. (Note: the reporter mistakenly says the Obama administration is no longer enforcing DOMA. That's incorrect; the administration is still enforcing the law but no longer defending it in court, instead inviting Congress to take up the defense.)